The recent case of Ngole v Touchstone Leeds throws up some interesting discrimination and data protection issues in connection with pre-employment vetting.
The employment tribunal had to consider whether an employer had discriminated when it withdrew an offer of employment after finding out via an internet search that a candidate had expressed religious views disapproving of homosexuality on Facebook.
Facts of the case
Mr Ngole is a Christian who applied for the role of discharge mental health support worker with Touchstone Leeds (Touchstone). Touchstone is a charity providing mental health services and about 12% of its work includes supplying services to the LGBTQI+ community.
Following an interview process, Touchstone made Mr Ngole an offer, conditional on receiving satisfactory references. When it received references that contained insufficient information, and then one of the referees was reluctant to provide further information, Touchstone searched Mr Ngole's name on Google. It found newspaper articles reporting that he had been dismissed from a social work course after posting derogatory comments about gay and bisexual people on Facebook.
Touchstone revoked the job offer because of concerns for the welfare of its service users. When Mr Ngole challenged the decision, he was offered a second interview to give him the opportunity to provide assurances that the mental health support worker role would not be compromised by his views and that he would embrace Touchstone's values, including the promotion of LGBTQI+ rights.
The second interview did not result in the job offer being reinstated. As a result, Mr Ngole brought an employment tribunal claim arguing that his ECHR Article 9 (freedom of thought, conscience and religion) and 10 (freedom of expression) rights had been breached and that he had been discriminated against on the grounds of religion or belief (direct discrimination, indirect discrimination and harassment).
Employment tribunal decision and discrimination issues
The employment tribunal held that the withdrawal of the job offer amounted to direct discrimination on the grounds of religion or belief. All the other claims were dismissed.
Much of Touchstone's work was with the LGBTQI+ community. Although the reason for withdrawing the job offer was legitimate (protecting vulnerable service users), it went further than was reasonably necessary and so was not proportionate. A less intrusive measure could have been used. For example, Mr Ngole could have been given the opportunity to provide assurances at a further interview before the offer was withdrawn; or Touchstone could have discussed the issues with Mr Ngole and provided training and guidance on expressing religious beliefs.
The refusal to reinstate the job offer after the second interview was found to be proportionate and so not discriminatory. Touchstone had made this decision because Mr Ngole had not been able to provide the necessary assurances that he was suitable for the role and that service users would be protected, not because of his religious beliefs.
It has been reported that Mr Ngole is appealing the tribunal's decision.
Data protection and pre-employment vetting
The case also highlights the importance of complying with data protection laws when shortlisting or testing potential candidates, particularly when it involves the processing of special category data, such as political, religious or philosophical beliefs. As with the processing of all personal data, organisations are required to ensure the processing of special category data is lawful, fair transparent, and not excessive.
When processing special category data, organisations must identify an additional legal basis under Article 9 of UK GDPR, such as explicit consent, reasons of substantial public interest or the data already being publicly available.
In Mr Ngole's case, his religious views were already in the public domain, but in its draft guidance on data protection and recruitment, the Information Commissioner's Office says that where organisations collect and process publicly available special category data, assumptions should not be made about a person's suitability for a particular role based on that data. It is easy to envision a scenario where a candidate argues that their beliefs have changed since the time the special category data in question initially entered the public domain. The ICO goes on to state that publicly available special category data can only be used if it is used fairly, for example, by giving candidates the chance to explain or comment at interview.
It is therefore essential that organisations consider whether online searches are fair and proportionate and that they are transparent with candidates about the checks they will carry out.
Key takeaways
Although this is only a decision at tribunal level, it raises some important discrimination and data protection issues in connection with recruitment and pre-employment vetting. It highlights that it is good practice to:
- Carry out pre-employment checks at as late a stage in the recruitment process as is practicable; and only use them as a means of obtaining specific information that would have a bearing on the employment decision, not general intelligence gathering.
- Explain to applicants as early as possible in the recruitment process the nature of any pre-employment checks that will be carried out, and how these will be done. Give details of any external sources / third parties you will use to check information. You will need to include certain information regarding the personal information you obtain from third parties, and third parties to whom you disclose personal information, in your recruitment privacy notice.
- Use all reasonable means to ensure that your sources are reliable. There are clear risks involved with using Google and social media platforms for pre-employment checking, as the information may not be accurate or up to date.
- Avoid using publicly available special category data to make assumptions about a candidate's suitability for a particular role.
- Give applicants an opportunity to provide an explanation if any checks disclose issues / discrepancies. This is necessary to ensure that the information you hold is accurate and processed fairly.
- If pre-employment vetting unearths information about a candidate's beliefs that conflicts with those of others in the workplace, avoid knee-jerk reactions. Context is key. Consider factors such as the content, extent, tone and language used when those beliefs were expressed; the nature of your business (including any potential impact on vulnerable service users); and any impact on the ability to run your business / potential reputational risk. Any action you take must be proportionate - think about whether there are any less intrusive options.
- Have a clear job description (setting out the duties and responsibilities of the role) and person specification (setting out the personal attributes necessary to perform those duties). The selection process can then be based on assessing whether candidates meet the requirements of these. This should help demonstrate that your recruitment process is objective and non-discriminatory.
If you would like to discuss anything raised in this blog, please contact a member of the Employment and Immigration or IP, Technology and Data teams.
